M. TABASSUM AFTAB ALVI, CJ. --- The supra titled writ petition has been addressed under Section 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby , a writ in the nature of mandamus is solicited against Respondents to appoint petitioner against the post of Secondary School Teacher B-16.
2. The summary of case is that petitioner in pursuance of advertisement No. 01/2013, applied against the post of Senior Teacher General Line B-16, pertaining to allocated quota of District Bagh. After qualifying written test, petitioner was called for interview by the Public _Service Commission (hereinafte r to be called as Commission), vide script dated 13.03.2018, which was held on 20.03.2018. It is further contended that after test and interview , petitioner was placed at serial No. 2, of the merit list. The claim of petitioner is that Education Department requisitioned 179 posts including 13 posts of District Bagh, of Secondary School Teachers (Male), General line B- 16, to the Commission, on 04.07.2017 (wrongly stated as 01.04.2017), which were withheld by the said Department at the time of advertisement No. 1/2013, hence, it was enjoined upon Government-respondent to appoint selected candidate of the Commission instead of making requisition to Public Service Commission as per Rule 9 of the Azad Jammu & Kashmir Public Service Commission (Procedure) Rules, 1994, hence, the instant Constitution petition.
3. The writ petition has been resisted by respondents through comments, which were treated as written statement on request of the learned counsel for respondents vide order dated 18.01.2019, wherein, it is stated that Commission advertised 07 posts, including 01 post of District Bagh, of Senior Teachers General Line B-16, through advertisement No. 01/2013, on the basis of unit wise quota. It is claimed that petitioner applied against 01 post of District Bagh, and secured 02nd position in waiting merit list. It is further stated that later on, Education Department requisitioned 13 posts of Senior Teach ers General Line B16, by allocating District-wise quota, which were published through advertisement No. 1/2018, and last date for inviting applica tions was fixed as 15.03.2018, therefore, no any illegality was committed by the Commission, hence, submitted for dismissal of writ petition.
4. Raja Zaigham Iftikhar , the learned counsel for petitioner strenuously argued that, inter alia, 01 post of Senior Teacher General Line B-16, was publish ed against allocated quota of District Bagh, through advertisement No. 1/2013. Ile maintained that petitioner qualified written test who was called for interview on 20.03.2018 vide letter dated 13.03.2018. The learned counsel pressed into service that 179 posts of Secondary School Teachers (Male), General Line B-16, were requisitioned by Education Department (Schools), before interview conducted by the Commission on 20.03.2018, therefore, on the basis of Rule 9 of the Public Service Commission (Procedure) Rules, 1994, it was enjoined upon Commission to amend earlier advertisement, who failed to do so. He argued that as petitioner is falling at serial No. 02, of merit list prepared by the Commission, therefore, on the basis of Rule 9 of the Public Service Commission (Procedure) Rules, 1994, he is entitled to solicited relief, hence, submitted for acceptance of writ petition.
5. Mr. Maqbool-ur-Rehman Abbasi, Legal Advisor appearing on behalf of respo ndents, however , opposed writ petition and submitted that 13 posts of Senior Teachers General Line B-1' pertaining to the quota of District Bagh, were requisitioned by Education Department to the Commission, which were publi shed through advertisement No. 01/2018, in which last date was fixed for submission of applications as 15.03.2018, therefore, petitioner is not entitled to any relief under law . The learned counsel finally craved for dismissal of writ petition.
6. I have perused the contents of writ petition and examined the appended documents made available with utmost care.
7. A contemplate perusal of file reveals that inter alia, 01 post of Senior Teacher General Line B-16, was published by the Commission against allocated quota of District Bagh, vide advertisement No. 01/2013. The petitioner applied for the same and qualified test & intervie w, who was placed at serial No. 2, of waiting merit list prepared by the Commission. The claim of petitioner is that 13 posts of Senior Teachers General Line B-16, pertaining to District Bagh, were requisitioned to the Commi ssion by the Education Department on 04.07.2017 (wrongly stated as 01.04.2017), before interview conducted by the Commission on 20.03.2018. Had these posts were included in earlier requisition, petitioner definitely would have been in the successful candidate s. To resolve controversial point Rule 9 of the Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994, is relevant which speaks as under:--- "9. If the requisitioning authority intim ates additional vacancies to the Commission before the date of test/examination or interview is fixed, keeping in view the time factor , a fresh advertisement/amendment to the previous advertisement shall be issued and fresh application shall be invited. The candidate, who had already applied in response to the original advertisement, may not be required to apply again."
A bare reading of the above reproduced Rule makes it abundantly clear that if requisitioning authority intimates the Commission about the additional vacancies before the date of test/examination or interview is fixed for earlier vacancies the Commission, keeping in view time factor shall issue amended advertisement. It reflects from the record that respondents requisitioned 13 posts of Senior Teachers General Line B-16. to the Commission on 04.07.2017 (wrongly stated as 01.04.2017), before the interview conducted on 20.03.2018. The aforesaid Rule clearly postulates that if requisitioning authority sends an additional post then it is binding obligation of the Commission keeping in view the time factor to amend earlier advertisement, however , the concerned respondents failed to proceed under law, therefore, for the fault of authority , petitioner cannot be penalized. It is well-settled principle of law that no one can be penalized for the fault of authority . An identical proposition came under consideration before the apex Court in case titled "Nasreen Akhtar and 03 others v. Sameena Bilquees and 03 others (2006 SCR 312), wherein, it was opined as follows:--- "....Even otherwise, for the sake of argument, if it is accepted that the advertisement dated 25.07.2006, was issued without lawful authority , even then that was the fault of the department, not the appellants. No person can be penalized for the fault of the department."
A similar view was expressed by the Laho re High Court, Lahore, in case titled "Ahmed Latif Qureshi v. Controller of Examination, Board of Intermediate and Secondary Education, Lahore " (PLD 1994 Lah. 3), wherein, it was observed as under:-- "It is an established proposition of law that no one can suffer on account of the act of the authority , who has to pass an order or who has taken some action. In the case in hand, it stands established that it is the respondents who are at fault and if the petitioner would not have illegally been proceeded against and the paper would not have been snatched away from him if successful he could have been declared to have passed the said examination in the first attempt, and, therefore, depriving the petitioner of the opportunity of passing in the 1st annual examination is, definitely an act which is illegal and without a lawful authority
8. The Commission, therefore, has violated its procedure in the instant case and other official respondents have also not specifically denied the fact of withholding 13 posts, pertaining to District Bagh, which were subsequently referred to the Commission. Therefore, I am of the considered view that violation of Rule 9 of the Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994, and withholding of posts as averred in paragraph No. 6, of writ petition, are amply proved, hence, petitioner has earned a right for his appointment against one of withheld posts requisitioned to the Commission.
9. The crux of above discussion is that by accepting the instant writ petition, the Commission-respondent is directed to recommend petitioner against the post of Senior Teacher Gener al. Line B16, and remaining respondents are hereby directed to appoi nt him against any withheld post within one month period from the receipt of the instant judgment. The office is directed to transmit an attested copy of the instant judgment to Secretary Public Service Commission, and Secretary Education (Schools) Department, for compliance. The cost shall follow the eventuality .